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THE GREATER SAGE-GROUSE–USING FLAWED SCIENCE AND THE LAND USE PLANNING
PROCESS TO IMPOSE DEVELOPMENT RESTRICTIONS NOT ACHIEVABLE UNDER THE
ENDANGERED SPECIES ACT -- THE SPOTTED OWL ON STEROIDS
116th National Western Mining Conference & Exhibition
April 17, 2014
LAURA SKAEREXECUTIVE DIRECTOR
AMERICAN EXPLORATION & MINING ASSOCIATION
National voice for exploration of locatable and non-coal minerals, the junior mining company sector and maintaining access to public lands
Public lands, Mining Law, environmental, health & safety, public outreach
State mining association for OR & WA
Active Washington DC presence
Second largest annual mining convention in U.S.
What We Do
Greater Sage-Grouse (“SG”) habitat covers + 100 million acres in 11 western states• BLM/USFS administer + 60 million acres of habitat
BLM’s proposed land use restrictions & prohibitions in the LUPAs will severely restrict access and multiple-use• Wildlands Policy (Sec. Order 3310) disguised as a sage-grouse• Prohibit mineral entry in priority habitat areas• Create widespread adverse economic impacts in 11 states• Most serious threat to mining on public lands since Mining
Law debates of the 1990s It’s the LUPAs, not the listing
Potential Listing of Greater Sage Grouse: The Spotted Owl on Steroids
2002 – 2003: Petition to list GSG as a T&E species 2005: USFWS determined listing “not warranted” 2007: Lawsuits challenging USFWS’ decision• Idaho District Court remands to USFWS
2010: USFWS Warranted but Precluded (“WBP”) listing determination makes GSG a candidate species (8 on a 1-12 scale)• Key question: Are existing regulatory mechanisms adequate
to conserve GSG habitat? Science supporting WBP is weak—CESAR Report• Dr. Oz Garton- used computer models and cites the
infamous “Dr. Anonymous”
GSG Listing History: Petition, Sue, and Settle
Listing History (continued)
• WBP decision cites lack of enforceable regulatory mechanisms, mainly in WY
• In 2011, FWS enters into a behind closed doors settlement with environmental plaintiffs on hundreds of species, including GSG that impact all of the lower 48 states
• USFWS agrees to eliminate the statutory WBP (“candidate species) option leaving only two choices: “warranted” or “not warranted” (de facto warranted because of policy where science is in doubt)• Essentially deprives states & private parties
of the ability to demonstrate their conservation plans are working
Settlement may violate ESA:• Eliminates possibility that candidate species, including
GSG, could remain candidate species (velvet hammer becomes a sledge hammer)• Arbitrary and aggressive deadlines impedes FWS ability to
use “best available science and commercial data”• WBP as a selectable alternative is necessary to ensure
determinations are based on best available science and commercial data when that science is evolving• Recent decision to reopen comment period for Bi-State DPS
and delay decision for 6 months references new data and emerging science
Court approves settlement with a listing deadline of FYE 2015 for the GSG
OK & Domestic Energy Producers Alliance sue to invalidate multi-species settlement agreement• Alleges violation of ESA, APA & Constitution by eliminating
statutorily mandated alternative of WBP in a friendly, behind-closed-doors settlement• Violated statutory obligation to make decisions based on
best available science and commercial data• Violated statutory obligation to consider efforts of a state or
political subdivision to protect a species • Altered FWS legal obligations in absence of congressional
action or a public rulemaking Consider Sec. Salazar’s invitation to western governors
to develop state plans when there was no chance they would prevent a listing because of settlement deadlines
BLM/USFS amending 88 land use plans to address conservation of sage-grouse and its habitat
USFWS/BLM assume human activity is the problem, but . . . it’s really fire and invasive species, especially in the Great Basin states
Ted Koch, USFWS Supervisor for NV, states the three greatest threats to the Greater Sage-grouse are• Fire and invasive species; Fire and invasive species; Fire and
invasive species Stopping fire and invasive species requires active
land management by all, including industry
The BLM/USFS LUPA Process
BLM issues its National Technical Team Report (NTT Report) in December 2011• Draconian land restrictions--“Stop doing that”• The NTT Report is a significant departure from Secretary
Salazar’s collaborative approach. (top down • Could signal a pre-determined outcome.• Judge Winmill 11/23/2012 decision that NTT is “best
available science”, but . . . is it?• Winmill’s declaration of “best available science” puts
Wyoming’s core strategy at risk• Maximum 3% total disturbance v 5% new disturbance• No State Plan can succeed if NTT is the “best available science” and
the measuring stick• Does not adequately address fire or invasive species
A listing is preferable to the NTT Report
The outside scientists only reviewed the conservation measures section of the report and not the policy recommendations.
Review: “Lack of consideration of space, and particularly (in this document) time is a critical mistake that, to me, renders this document problematic, if not dangerous.”
Review: “The document is an odd mix of scientific citations and policy decisions, with no real tie between the two…This seems a strange blend of policy loosely backed by citations, with no analysis of the science.”
Outside Science Review of the NTT Report
AEMA (NWMA) Report, BLM’s NTT Report: Best Available Science or a Tool to Support a Pre-Determined Outcome• Prepared by independent biologist Megan Maxwell• National media coverage• Referenced in congressional oversight hearings• Cited by oil & gas trade associations in their comments• Now part of the administrative record in CO, ID, MT, NV, UT
& WY draft LUPAs• Reveals BLM ignored existing tools like the 2004 sage brush
guidance and 2008 Special Status Species Manual 6840 to create new, draconian regulatory mechanisms • Misinterprets 2010 WBP determination by concluding that
new regulatory mechanisms are required
WAFWA criticizes NTT Report• “Applying a “one-size-fits-all” approach focusing solely on
the NTT report is not appropriate for management of the variations that occur across the sage-grouse range.. Our concern is that using the NTT, in vacuum, would undermine sage-grouse conservation range-wide.”
Dr. Rob Roy Ramey II, Wildlife Science International, Inc. reviewed the Data Quality Act issues in the NTT Report and concluded:• “In reality, the NTT report represents a partial presentation
of scientific information to justify a narrow range of preferred conservation measures and policies that will be imposed as land use regulations by the BLM.”
Governor Otter’s FOIA Request• In response, after several delays and threat of litigation,
BLM released over 2,000 pages of emails, meeting notes and draft documents relating to the NTT Report (tip of the iceberg)
Response reveals:• At best, a Department divided on this issue.• At worse, an effort to preclude new development on 40-
60 million acres of public land.• NTT Report is a reversed-engineered, policy first, science
second document• Supports conclusions in Maxwell & Ramey papers
Gov. Otter files FOIA request re: NTT Report
From: Dwight FielderTo: Pat Diebert, et al.Date: December 21, 2011_______________________________________
“But, does the NTT really want to recommend something that is blatantly illegal? It seems to me that the caveat provided makes it clear that the NTT document IS a technical document that has not undergone a policy or legal review.”
NTT Report: “Blatantly Illegal”
From: Pat DiebertTo: Dwight Fielder, et al.Date: December 21, 2011____________________________________________“The NTT is providing the science. That does not change with the laws that BLM works under.”
From: Dwight FielderTo: Raul MoralesDate: December 21, 2011 ____________________________________________“I don’t know how to respond to this and am thinking that I shouldn’t.”
Does “science” trump legal obligations?
From: Ray BradyTo: Jim Perry, et al.Date: Tuesday, December 20, 2011____________________________________________
“I have reviewed the Planning IMN Conservation Measures for the rights-of-way (ROW) activities on page 11-12 of the NTT Report. These planning prescriptions will be significant game changers and unworkable in my mind for the linear ROW program, including renewable energy rights-of-way (especially wind energy program).”
NTT Report: A “Game-Changer”
From: Tony ApaTo: Christian Hagen, Steve Knick, David Naugle, Pat DiebertDate: September 12, 2011______________________________________________“I’ve tried to identify those biological recommendations that may need a scientific citation . . . If we don’t have the science I’m assuming it will be our best professional judgment. So, if you could get each of you to take a shot and identify a research citation that supports the biological recommendation along with the full citation I would greatly appreciate the help.”
Best Professional Judgment
From: Robin SellTo: Raul Morales Date: Friday, September 16, 2011 _____________________________________________________________________
“Hi, Raul – My question, and maybe a suggestion . . . I don’t feel like we really got into (or had time to discuss) the current science out there on SG (Sage-Grouse) . . . so I would like to propose that the researchers and biologists on the NTT – maybe a few other bios if appropriate – meet again in the next few months (maybe Nov/Dec) for about three days to have a frank discussion on various studies/papers out there . . . the good, bad & ugly so to speak. It would not have to hold up the current document we have worked on…The reality, the science folks were not going to have this kind of discussion with program leads in the group, and timeline did not allow this review and scrutiny. But I think this kind of full disclosure will really benefit the Bureau, FWS, and SG down the road.”
NTT Report: A Flawed Process
What is the “real” purpose of the NTT Report?
Does FWS believe these measures are necessary to preclude a listing?• Not according to two FWS state supervisors
Why did BLM publically release this flawed document knowing it was flawed?
Why did the BLM represent to Judge Winmill that the NTT Report was the “best available science”? Especially when it was heavily criticized by the outside reviewers.
NTT Report Questions
Potential Land Use Restrictions and Withdrawals in the Western US
BLMs Draft LUPAS/EIS’ & Acres Proposed for Withdrawal per the NTT
LUPA Preferred Alternative Environmental/NTT Alternative No Action Alternative
Miles City DRMP (MT) 36,000 1,500,000 32,000
Hiline DRMP (MT) 45,000 1,671,201 23,444
Billings/PPNM DRMP (MT) 278,270 913,386/278,220 41,555
Bighorn Basin Draft Supplement to DRMP (WY)
N/A 1,764,621 /1,529,955 174,354
Northwest Colorado GSG Amendment (CO)
0 1,576,900 124,800 (co-located in GSG habitat)
NV/NE Cal Sub-Regional GSG DLUPA
1,671,100 17,732,900/13,068,200 1,670,800
Idaho and Southwestern Montana Sub-Regional Greater Sage-Grouse RMP Amendment
36,600 237,400 /369,600 36,600
Utah Greater Sage-Grouse Draft Land Use Plan Amendment/DEIS
498,700 3,650,900/4,008,580 498,700
9-Plan GSG Amendment (WY)
5,002,170 5,002,170 1,677,420
From the Hiline Montana DRMP• "The management of wildlife resources and habitat outside
of special designations would seldom prevent locatable mineral development, but in order to avoid significant impact to wildlife, special conditions and possible relocation of exploration or mining development could occur. This relocation, as well as any additional mitigation would create time delays and further expenses for locatable mineral development if not closing the area to mineral entry through withdrawal…"
The cure is worse than the disease – an “endangered” finding is preferable to the LUPAs
Litigation is looming -- who will be plaintiffs and who will be defendant interveners
Not warranted?• 2005 finding, but not likely now
Warranted but precluded?• NOT an option because USFWS agreed to eliminate this
option in the behind-closed-door settlement agreement Warranted?• Endangered
Dan Ashe says not likely – lots of birds• Threatened with a 4(d) rule
Dan Ashe seems to be telegraphing this option Lesser Prairie Chicken and Bi-State Sage-grouse Restrictions can be more draconian than an endangered listing Does not alleviate §7 consultation requirement
The Listing Decision—What Are the Odds?
If BLM preferred alternatives are implemented, the impacts on economic use of the public lands are far more onerous that an “endangered” finding• LUPAs will be final ~ one year before listing decision• No guarantee they will result in a “not warranted” finding
Worst case scenario = LUPAs + threatened with 4(d)• Species management moves from states to feds• Draconian land use restrictions in place• Governors’ plans are trumped• Flexibility eliminated• Economic devastation across the west
Megan’s Report debunking NTT Report Formed sage-grouse task force Building the administrative record by filing
comments on draft LUPA/EIS’ in 7 states◦ Preferred alternatives based on NTT report and not on the
best available science and commercial data◦BLM/USFS exceeded their statutory authority proposing
actions that fail to comply with NEPA and violate: FLPMA The General Mining Laws NFMA ESA Information (Data) Quality Act
AEMA Efforts
• Conservation measures are more draconian than restrictions from an ESA listing Elevates sage-grouse conservation above all other resources
and uses in violation of FLPMA §102(12):The Congress declares that it is the policy of the United States that the public lands be managed in a manner which recognizes the Nation’s need for domestic sources of minerals, food, timber, and fiber from the public lands including implementation of the Mining and Minerals Policy Act of 1970.
Working closely with Congressional staff• Educating members & staff, providing witnesses and
questions for oversight hearings• Legislation to delay decision and provide states and BLM
more time Working closely with WGA, governors’ staffs &
coalition partners
Use the appropriations process to delay the listing decision until after October 1, 2015◦ PROBLEM -- Doesn’t prevent BLM/USFS from imposing
restrictions in LUPAs Rep. Amodei (R-NV) Sage-grouse and Endangered
Species Conservation and Protection Act (H.R. 4419)◦ Focuses on fire, invasive species and habitat restoration◦ Sale of public land to fund habitat conservation◦Requires funding in place before a listing decision◦ Extends timelines for action on listing petitions to 5 years◦Minimum one year public comment period
Legislative Ideas
Reid-Heller discussion draft for Nevada• WSA + sage-grouse habitat = new Wilderness dedicated to
sage-grouse conservation; • sale of public lands for economic development to local
governments and certain industries; proceeds fund mitigation bank, fire suppression, habitat restoration• LUPAs will dictate activity in sage-grouse habitat outside of
Wilderness• Very little on-the-ground support in northern Nevada• No guarantee re listing decision• Not supported in the House
Take away messages:• A LISTING IS PREFERABLE TO THE
PROPOSED LAND USE PLAN AMENDMENTS
• SUPPORT A FEDERAL LEGISLATIVE SOLUTION—the only way to stop the LUPAs• Proposed restrictions on use are worse than a listing• GET INVOLVED!• SUPPORT YOUR GOVERNOR’S PLAN!• Join with other public & private land user groups—
strength in numbers
